5) Filed documents: Claim and Answer. This is Defendant's motion, pursuant to
CPLR § 3211, to dismiss the claim in this matter as it was served by
regular mail and not certified mail, return receipt requested as required by
Court of Claims Act § 11(a).
In his underlying claim, filed on July 28, 1999, Claimant alleges that on
January 20, 1999, Defendant improperly transferred him to Lakeview Correctional
Facility, where he was improperly confined in a "double-bunk cell" until May 13,
Claimant does not deny that he served the claim in this matter upon the
Attorney General by regular mail. He asserts, however, that Defendant prevented
him from serving his claim by certified mail, return receipt requested. He
argues that Defendant's motion should be denied on this basis.
There is precedent indicating that, when an inmate's attempts to properly serve
or file a document are thwarted by agents of Defendant, Defendant can be
estopped from objecting to the manner of service (Wattley v State of New
York, 146 Misc 2d 968). However, as stated by Judge Corbett in Lundy v
State of New York (Ct Cl, March 13, 2002 [Claim Nos. 100259 and 100260,
Motion Nos. M-64627 and M-64628], UID #2002-005-522), "Contemplating an estoppel
against a governmental entity is rare and rigidly circumscribed" (citing
Francis v State of New York, 155 Misc 2d 1006). In such instances,
Claimant is required to present evidentiary support for his allegations, such as
a disbursement form from the facility specifying that his account was debited
for the purpose of sending the document in question (Dagnone v State of New
York, Ct Cl, May 30, 2002, [Claim No. 105609, Motion No. M-64898], Lebous,
J., UID #2002-019-532).
Here, Claimant has only demonstrated that the Defendant granted him permission
to have an advance on his inmate account to send his claim by certified mail,
return receipt requested. Claimant has failed to demonstrate that he took any
steps to do so. In fact, I note that the claim was post-marked July 27, 1999.
Claimant was granted permission for an advance on July 29, 1999. Claimant,
therefore, mailed the claim by regular mail to Defendant prior to obtaining
permission for an advance to send the claim certified mail, return receipt
requested. As Claimant has failed to demonstrate that Defendant acted
inappropriately regarding the service of the claim, I decline to estop Defendant
from asserting the defense.
Court of Claims Act § 11(a) provides, in relevant part, that a copy of the
claim "shall be served personally or by certified mail, return receipt
requested, upon the attorney general." The requirements set forth in Court of
Claims Act § 11 are jurisdictional in nature and, as such, must be strictly
construed (see Finnerty v New York State Thruway Auth., 75 NY2d
721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d
687). The Court is not free to disregard this requirement. "[D]iscretion,
equity, or a harsh result may not temper application of a rule of law"
(Martin v State of New York, 185 Misc 2d 799, 804).
Claimant has failed to meet the literal requirements of Court of Claims Act
§ 11. Service upon the Attorney General by first class mail was improper
(see Dreger v New York State Thruway Authority, 81 NY2d 721;
Negron v State of New York, 257 AD2d 652; Philippe v State of New
York, 248 AD2d 827).
Therefore, for the reasons set forth above, it is
ORDERED, that Defendant's motion for dismissal of the claim is granted.
The Clerk is directed to close the file.